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Field Of (Broken) Dreams In New London?

That now-cliched line from Field of Dreams, "if you build it they will come" (actually, it's "he will come," but work with us here) seemed to be the driving force behind the New London Development Corporation's plans for the Fort Trumbull neighborhood when it wanted to condemn the homes of Susette Kelo and her neighbors. If they condemned, Pfizer would come.

They condemned the hell out of it, but it turns out that it wasn't the pharmaceutical giant that came, or even Shoeless Joe and his Black Sox. According to a report in the New London, Connecticut paper The Day, birds -- killdeer, red-winged blackbirds, mourning doves and others -- have come: "Fort Trumbull Neighborhood Is For The Birds."

When Spinoza observed some 350 years ago that "nature abhors a vacuum," the Fort Trumbull peninsula hadn't seen its first fort yet, let alone any hints of the epic property-rights struggle to come as the 21st century dawned.

Now, just two years after the last house was razed by the New London Development Corp. for an as-yet unrealized new development, the former neighborhood is something of a demonstration site for the Dutch philosopher's famous insight. The empty lots once occupied by yards, porches and office buildings are turning into a meadow of wildflowers, milkweed and tall grasses, and the birds are moving in.

As Professor Gideon Kanner commented on this story last week, You Can't Make this Up. See also Eminent Domain is for the Birds, from Reason's blog.

HAWSCT: Property Owners Entitled To Attorneys Fees & Costs For Failed Taking, Even If Gov't Prevails In Intermediate Steps

Under Haw. Rev. Stat. § 101-27, when a condemnation action is "abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that property is not "finally taken" in a condemnation action when a single condemnation fails or is dismissed, even if the condemnor succeeds in a subsequent -- or concurrent -- attempt to take the property. [Disclosure: we represent the property owner in these cases.]  The court remanded the issue of damages sustained at the trial court level, and in a May 14, 2009 order (posted here), the trial court awarded the property owners 100% of the attorneys fees incurred at trial, including over $1.5 million in attorneys fees and $111,000 in costs.

Additionally, in County of Hawaii v. C&J Coupe Family Ltd. P'ship, No. 28822 (Apr. 21, 2009) (opinion posted here), the Supreme Court held that a condemnee is also entitled to damages it sustains on appeal.  As noted in this post, however, we asked the Supreme Court to reconsider its conclusion that the property owner was not entitled to damages associated with the County's motion to transfer the consolidated appeals from the Intermediate Court of Appeals to the Supreme Court because "the County prevailed" on that motion.  See slip op. at 29-30.  Today, in an order, the court agreed and amended its earlier opinion to read:

Although the County prevailed on that motion, it appears that Appellant has properly included attorneys' fees incurred in defending the motion to transfer in its Request, inasmuch as fees are encompassed under HRS § 101-27 as part of "all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings" in Condemnation 1.  Therefore, those entries will be included in the fee award.

Order at. 5. In other words, what matters for the determination of governmental liability under section 101-27 is whether the property is "finally taken," not whether the government may win intermediate steps along the way. If the taking fails, the government is liable for all of the property owner's fees and costs, even those related to motions the government may have won.

The court did not amend any other portion of the opinion, noting that "costs of court" claimed under section 101-27 must be reasonable, and that copying costs are not included within the meaning of the term "costs of court" as used in that statute.  The amended opinion is available here.

Minn Court Of Appeals: Redevelopment Agency Exceeded Delegation Of Eminent Domain Authority

In Eagan Economic Development Authority v. U-Haul Company of Minnesota, No. A08-0767 (May 19, 2009), the Minnesota Court of Appeals held that when a delegation of eminent domain power from a municipality requires a redevelopment agency to enter into a development agreement before acquiring property, the agency is without power to take property until it enters such an agreement.

Most property owners within the redevelopment district did not object to the taking of their land but three did.  They argued that the city's resolution delegating condemnation power to the redevelopment agency incorporated a redevelopment plan into its requirements by reference.  As noted by the court, section 1-8 of the resolution provided:

The Redevelopment Plan contemplates that the City may acquire property and reconvey the same to another entity. Prior to formal consideration of the acquisition of any property, the City will require the execution of a binding development agreement with respect thereto and evidence of Tax Increments or other funds will be available to repay the Public Costs associated with the proposed acquisition.

Slip op. at 9 (emphasis original). The agency, however, argued that the redevelopment plan granted it broader authority and did not require it to enter into a development agreement first:

The second provision is section 1–12, which is a broader statement of acquisition of land: "The City may acquire such property, or appropriate interest therein, within the Redevelopment Project Area as the City may deem necessary or desirable to assist in the implementation of the Redevelopment Plan."

Id.  The agency did not enter into a development agreement, and the district court accepted its argument that the "broad language ... swallow[ed] the limiting language." Slip op. at 10. The court of appeals held the opposite, that the broad delegation in 1-12, which provided the "full extent" of the city's condemnation power, was "unequivocally qualif[ied]" by section 1-8 which made the entry into a development agreement the condition precedent to the exercise of the condemnation power. The court held:

The immediately apparent problem with the district court’s interpretation, which the EDA asks us to adopt, is that it disregards two well-worn maxims of statutory interpretation: First, a statute should be interpreted to give effect to all of its provisions, and, second, to the extent two provisions cannot be reconciled, the more specific provision should prevail over the general. Contrary to the EDA’s invitation to disregard section 1–8, we can reasonably give effect to both provisions by applying these principles so that neither part of the resolution is superfluous or insignificant.

Slip op. at 11 (citations omitted). The court also rejected the argument that the language limited the city's condemnation power but did not limit the agency's. The court noted that the city could delegate "no more power than the city possessed," and the delegation was limited by the city's self-imposed development agreement precondition. Slip op. at 12.  

More background on the case in Court rules against Eagan in eminent domain case.

Government Must Pay 100% Of Owner's Defense Fees In Illegal Condemnation

Under Haw. Rev. Stat. § 101-27, when a condemnation action is "abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses

The County of Hawaii filed a condemnation lawsuit, and when it looked like that action was in legal jeopardy, filed a second lawsuit seeking to take virtually the same property. The trial court eventually held the first condemnation was an unconstitutional private taking, but upheld the second.  The County denied it was liable for 101-27 damages even though the property was not taken in the first condemnation, because it was successful in the second. 

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that property is not "finally taken" in a condemnation action when a single condemnation fails or is dismissed, even if the condemnor succeeds in a subsequent -- or concurrent -- attempt to take the property. The Supreme Court ordered the trial court the issue of the amount of damages incurred in the trial court, and in a May 14, 2009 order (posted here), the trial court awarded the property owners all of the attorneys fees incurred at trial, including over $1.5 million in attorneys fees and $111,000 in costs.  The court held the rates charged for professional services were reasonable "given the complexity, breadth, and amount of issues presented in this case and the extensive experience of counsel in this area of law." Disclosure: we represent the property owner in these cases.

WA Court Of Appeals: Delegations Of Eminent Domain Power To Municipalities Strictly Construed

A state law providing that airport boards may exercise the powers of the municipalities which appoint them, but which also requires a condemnation action by an airport board "be instituted in the names of the municipalities jointly," prohibits an airport board from instituting an eminent domain suit in its own name. In Spokane Airports v. RMA, Inc., No. 26538-2-III (Apr. 28, 2009), the Washington Court of Appeals held that any condemnation suit filed by the airport board that is not in the names of the municipalities lacks subject matter jurisdiction.

The City of Spokane and Spokane County jointly operate the Spokane International Airport, and formed the Spokane Airport Board to operate it. The airport needed to remove some buildings, including several which were leased to RMA, so the city and the county passed a resolution of taking condemning the leases. The Airport Board, purporting to act pursuant to the authority in the resolution, instituted a condemnation lawsuit in its own name.

The Washington state law empowering airport boards (Wa. Rev. Code § 14.08.200) provides that "[c]ondemnation proceedings shall be instituted, in the names of the municipalities jointly, and the property acquired shall be held by the municipalities as tenants in common." RMA asserted the condemnation action was invalid because it was the product of an illegal delegation of eminent domain power from the city and county to the Airport Board. In other words, the Airport Board had no authority to sue in condemnation in its own name. 

The court of appeals began its analysis by noting "[w]e strictly construe statutes that delegate the state's sovereign power of eminent domain." Slip op. at 11 (citing Pub. Util. Dist. No 2 of Grant County v. N. Am. Foreign Trade Zone Indus., 151 P.3d 176 (Wa. 2007)). The court distinguished State v. King County, 446 P.2d 193 (Wa. 1968), a case which held there was no illegal delegation of eminent domain power where a local board brought a condemnation suit in the state board's name under a statute with wording similar to section 14.08.200:

King County is distinguishable. There, the local board complied with a requirement set out in the resolution—that any condemnation action be filed in the name of the state board. Here, the joint resolution contained no such requirement. And Spokane Airports brought the condemnation petition in its name only. The joint resolution here attempts to delegate powers of eminent domain to Spokane Airports, not just ministerial functions.

The City and the County did not have authority to delegate their power to condemn to Spokane Airports. At most, they could authorize Spokane  Airports to exercise the ministerial duties attendant to taking RMA's property by condemnation.

Slip op. at 12-13. The court also held that the delegation issue was a question of subject matter jurisdiction, and could be raised for the first time on appeal:

We conclude that Spokane Airports had no authority to condemn property, that its activities here were more than ministerial, and that the superior court then had no jurisdiction over the subject matter of this controversy.

Slip op. 16. Our thanks to the Amateur Law Professor blog for notice about this decision.

West Hawaii Today On Latest HAWSCT Opinion In Eminent Domain Abuse Cases

The Big Island's West Hawaii Today reports "Both sides claim win in latest ruling" about the Hawaii Supreme Court's recent opinion in the cases involving the County of Hawaii's attempt to take the property of a Kona family to meet the County's obligations under a development agreement with the developer of the Hokulia project.  Disclosure: we represent the property owner in these cases.

In County of Hawaii v. C&J Coupe Family Ltd. P'ship, No. 28822 (Apr. 21, 2009) (posted here), the court confirmed that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27, including the reasonable attorneys fees and costs it incurs on appeal when its property is not "finally taken" for public use. The trial court struck down an attempted taking for a road for lack of public use,

The road, part of a development agreement between the county and Oceanside 1250, developers of the Hokulia luxury community makai of Kealakekua, is 60 percent complete despite more than seven years of litigation.

In a separate eminent domain case against the same owners prosecuted concurrently, the trial court held the property could be taken, so the County refused to pay section 101-27 damages. In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Supreme Court rejected the County's argument, holding that if property is not taken in an eminent domain case the County must make the owner economically whole, even if the property is taken in another case.

The Supreme Court also vacated the second taking attempt, remanding it to the trial court for an inquiry into whether the asserted public purpose was pretextual.  The report continues:

Still forthcoming is a ruling by Ibarra on whether the county condemned the land on a pretext on behalf of developers instead of for an actual public benefit. The Supreme Court sent that portion of the case back to the lower court after hearing arguments on it last year.

Ibarra's clerk could not say Wednesday when that ruling might be made. Ibarra received briefs from the parties in the case last month.

In September 2007, Ibarra ruled the county could take the property by paying $162,204.83 for the land, plus interest and 10 percent annually for "blight" damages.

The Coupes appealed, saying the county lost its condemnation claim and can't just keep filing new ones until one sticks. Attorneys argue the public purpose is just a pretext, as the real benefit goes to Hokulia, not the public.

"These arguments are not about a road. They're about the law," Robert Thomas, an attorney for the trust, said in oral arguments in October. "The government in cases of eminent domain has a huge advantage. It creates the facts. ... If they lose, they're not prohibited from trying again and again and again."

The strip of property is part of a 51/2-mile limited access road that will eventually link Napoopoo Junction in South Kona with Keauhou and beyond to the planned Alii Parkway. It's being built by Oceanside 1250 as one of a number of community benefits in return for the right to build Hokulia.

Hawaii County and Oceanside 1250 contend the road has been on planning maps for decades and serves an obvious public purpose in relieving heavy traffic through the mauka Kona area.

Our proposed Findings of Fact and Conclusions of Law on the pretext issue are posted here ("Determining Eminent Domain Pretext In Serial Takings").

Little Pink House Event Report

I was fortunate enough yesterday to attend an event with Jeff Benedict, who spoke about his recently-published book Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here). 

Little Pink House gives the backstory to the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005). It's not a dry recounting of the legal issues or the Court's opinion, but a story of how one property owner's determination to keep her home ended up in the U.S. Supreme Court, and eventually took on a life of its own. The book has been reviewed in the New York Times and the Wall Street Journal among other places.  Robert S. Poliner, the Connecticut Ombudsman for Property Rights also reviewed the book; we've reprinted his review here.

The highlights of Benedict's talk:

• The first contact Susette Kelo received from the New London Redevelopment Corporation was a knock on the door and an agent asking "how can we help you relocate?"

• He felt the "ah-ha" moment in the legal case was when Justice O'Connor asked NLDC's attorney "do you mean that the city can take land from Motel 6 and give it to the Ritz-Carlton, if the Ritz is projected to generate more taxes?"  NLDC's counsel answered "yes."

• He also described how an issue that is lost in the Supreme Court can turn into a winner in the long run.

Dana Berliner and Scott Bullock from the Institute for Justice --  the attorneys who represented Susette Kelo -- also spoke.  Bullock noted that Kelo was the logical endpoint for the Court's takings clause jurisprudence which has strayed from the "public use" set forth in the text of the Fifth Amendment.  He noted the interpretation has transformed from "public use" to "public purpose," and that now it means "public benefit."  He also noted that the universal revulsion at the Court's decision resulted in many state courts and legislatures rejecting it.  He wrapped up by noting that the little pink house was taken apart and rebuilt on another site in New London as a permanent reminder, and that the original site of Kelo's house remains vacant to this day.

Berliner focused on California law, particularly its redevelopment code and the ease of a "blight" finding. She referenced the 2008 study by the IJ "California Scheming," which details how so-called "blight" designations can be abused to cloud property for years.

We recommend: read the report, read the book.

Links From Today's ABA Teleconference: Hot Topics In Land Use Law 2009

Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

• Proving Eminent Domain Pretext In Serial Takings - County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (proposed Findings of Fact and Conclusions of Law on remand)

• Book Review: Little Pink House by Robert S. Poliner, Connecticut Ombudsman for Property rights

• New Eminent Domain Book: Current Condemnation Law - Takings, Compensation & Benefits (2d ed.)

• Eminent Domain Use and Abuse: Kelo in Context (ABA 2007) (Dwight Merriam, Mary Massaron Ross, eds.)

• Might Makes Blight In The New York Appellate Division - Develop Don't Destroy Brooklyn v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009)

• New Cert Petition - Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees - the cert petition seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008)

• California Court of Appeal: No TKO Of Eminent Domain Challenge - Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009)

The 2009 version of this popular annual program covered the latest developments in several areas of the law related to land use regulation.  Among the topics were the ability of town boards to control obstreperous speakers; the latest law concerning ethical constraints on state and local officials and the citizens who appear before them; restrictions on the government's ability to limit religious land uses under the Religious Land Use and Institutionalized Persons Act (RLUIPA); what's new concerning cell tower sitting; new law about impact fees and exactions; and citizen input into brown fields restoration and the backlash against it. I spoke about the latest developments in eminent domain and pretext. Also on the faculty were Daniel Dalton, Robert B. Foster, W. Andrew Gowder, Jr., and Jeffrey Kleeger. Paul D. Wilson moderated.  More here, including information about purchasing the CD recording.

If you have any questions or comments you weren't able to ask or make during the teleconference, please drop me an email.

Links From ABA Condemnation Hot Topics Teleconference

Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

• Might Makes Blight In The New York Appellate Division - Develop Don't Destroy Brooklyn v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009)

• Determining Eminent Domain Pretext In Serial Takings - County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (proposed Findings of Fact and Conclusions of Law on remand)

• Book Review: Little Pink House by Robert S. Poliner, Connecticut Ombudsman for Property rights

• First Circuit: Williamson County Applies To Eminent Domain Challenges - Lichoulas v. City of Lowell, No. 08-1485 (1st Cir. Jan. 20, 2009)

• New Eminent Domain Book: Current Condemnation Law - Takings, Compensation & Benefits (2d ed.)

• How To Prove A Substantive Due Process Zoning Case - Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778 (2d Cir. 2007)

• Williamson County, removal, and remand of regulatory takings case after municipality created wetlands - Yamagiwa v. City of Half Moon Bay, 523 F. Supp. 2d. 1036 (N.D. Cal. 2007)

• California Court of Appeal: No TKO Of Eminent Domain Challenge - Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009)

• Eminent Domain Use and Abuse: Kelo in Context (ABA 2007) (Dwight Merriam, Mary Massaron Ross, eds.)

The program examined new and important condemnation cases and trends, and also reviewed eminent domain as a backdrop for land use regulation. Also on the faculty were Robert Freilich, Mary Lynn Huett, and Edward Sullivan. Professor Steven Eagle moderated. More here, including information about purchasing the CD recording.

If you have any questions or comments you weren't able to ask or make during the teleconference, please drop me an email.

More On Pretext In Eminent Domain

Following up on this story, West Hawaii Today reports "Attorneys argue against Supreme Court ruling on bypass," about whether a second attempt to condemn property ostensibly for a road is pretextual when the court determined the first attempt was unconstitutional and nothing changed:

Attorneys for the Richards family and the Coupe Trust, in documents filed in 3rd Circuit Court Friday, argue that the condemnation action initiated by Hawaii County in 2005 was essentially the same as one filed in 2000 and later dismissed.

Disclosure: we represent the property owner in this case.

The Hawaii Supreme Court in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here) held that courts have an obligation to take allegations of pretext seriously -- even when the taking is for a "classic" public use -- and remanded the case for consideration of evidence of pretext.

The proposed findings we submitted referenced in the WHT article are available here. The County of Hawaii's proposed findings are available here. For further detail and analysis, see "Determining Eminent Domain Pretext in Serial Takings."

[Note: the headline is a bit off -- no one is arguing "against" the Supreme Court ruling; on remand the parties are applying the Supreme Court ruling.]